R v Wang

Approach to Sentencing

1. The maximum penalty for the offence of murder is life imprisonment (Crimes Act, s 19A). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Crimes (Sentencing Procedure) Act 1999, s 61(1); the "Sentencing Act"). The Crown Prosecutor did not submit that a life sentence should be imposed. Although I regard the murder of Ms Zhou as a particularly serious instance of the crime of murder, I record that I am not satisfied that a life sentence is appropriate in this case.
2. Section 54A of the Sentencing Act specifies a standard non-parole period of 20 years for the offence of murder. In fixing a sentence, I am required to be mindful of the maximum sentence of life and the standard non-parole period (Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]; "Muldrock"). However, I am not required to undertake the sentencing exercise by asking whether there are reasons for not imposing the standard non-parole period (Muldrock at [25]). Instead, bearing in mind the two legislative guideposts, I am required to identify all the factors relevant to the sentencing task, consider their significance, and then assess the appropriate sentence (Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; Muldrock at [26]).

The Agreed Facts and the CCTV Footage

1. Tendered at the sentencing hearing was an agreed statement of facts concerning the murder of Ms Zhou. In making findings of fact, I am bound by the agreed statement. To the extent that it is necessary to make further findings relevant to the offender's culpability then they may not be inconsistent with the agreed statement. In relation to the onus of proof concerning such findings, in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] ("Olbrich") Gleeson CJ, Gaudron, Hayne and Callinan JJ confirmed that a sentencing judge may not take into account facts adverse to an offender unless they are established beyond reasonable doubt, and may take into account facts favourable to an offender if they are proved on the balance of probabilities.
2. In this regard, at the sentence hearing, the Crown also sought to tender and play closed circuit television footage ("CCTV") of the common areas of the offender's apartment and the footpath outside. Both steps were opposed by Senior Counsel for the offender, Mr Bellanto QC, on the basis that the circumstances of the offending were adequately described in the agreed statement of facts. I allowed the tender on the basis that a viewing of the CCTV footage could assist in resolving some of the factual disputes that had arisen, namely the suggested lack of control on the part of the offender and whether she was affected by alcohol (see R v Mulligan [2016] NSWCCA 47). I also allowed the tender on the wider basis that a viewing of the footage would allow the Court to better appreciate the course of the events in those terrible last few minutes of the victim's life. I determined that, after warning members of the public of its graphic nature, the footage should be played in open court (R v Wang [2020] NSWSC 1255). In particular, I considered that playing this material in open court would advance public confidence that sentencing proceedings are conducted in a manner that enables the Court to understand the nature and impact of serious crime.
3. Having viewed the CCTV footage I can confirm that it is graphic and disturbing. However, it assisted me in resolving the issues in dispute in the proceedings and it enabled a better appreciation of the seriousness of the offender's actions. That said, I have exercised caution in comparing this case with the descriptions of killings in other cases where CCTV footage was not available and was only capable of being described through witness testimony or agreed facts.
4. The following narrative is taken from the agreed facts, as supplemented by the CCTV footage.
5. As at 17 June 2019, Ms Zhou was 23 years of age and the offender was 29. The offender and Ms Zhou commenced a relationship in 2017. The agreed facts record that the relationship was ended by Ms Zhou around February 2019 but the offender "could not come to terms" with the breakup. Mutual friends of Ms Zhou and the offender observed that from the time the relationship ended the offender became depressed, anxious, slept poorly and lost weight. On 14 March 2019, the offender consulted a general practitioner and reported loss of appetite, insomnia and weight loss.
6. On 23 March 2019, the offender invited a mutual friend of hers and Ms Zhou, Ms Simin (Min) Yu, as well as another friend, to dinner at a restaurant in Waterloo. The agreed facts state that after the dinner the offender told Ms Yu that she was "not good" about the relationship ending with Ms Zhou and that she "had lost hope". The offender said that when she was with Ms Zhou she wanted to work hard and have a good life, but now she did not know the meaning of working.
7. On 29 March 2019, the offender resigned from her job. She finished work on 23 April 2019.
8. The offender was referred for a psychological review after seeing a general practitioner on 15 April 2019. On 17 April 2019, a psychologist recorded the following: "initial assessment completed. Adjustment disorder - relationship breakdown after ex cheated on her with her friend. Presents with symptoms of mixed anxiety and depressed mood. Treatment plan: CBT, psychoeducation, mindfulness based CBT, self-esteem and confidence building techniques".
9. In late March 2019, Ms Zhou began a relationship with Ms Yu. On 1 May 2019, the offender met Ms Zhou for lunch. The offender told Ms Zhou that she was aware of the relationship between Ms Zhou and Ms Yu. The offender was due to leave for the Peoples Republic of China on 2 May 2019. At lunch, the offender and Ms Zhou agreed that Ms Zhou would rent out the offender's apartment for her while she was overseas. The offender left Australia the next day.
10. Ms Zhou and the offender maintained contact during her absence. On 24 May 2019, the offender returned to Sydney from China. While the offender was absent overseas Ms Zhou leased an apartment in Rosebery.
11. During June 2019, the offender and Ms Zhou sent messages to each other on social media. Ms Zhou offered to help manage the bookings for the offender's apartment as the offender told Ms Zhou she would not be staying in Australia.

17 June 2019

1. On 17 June 2019, Ms Zhou told the offender she would come to the offender's apartment that evening to collect some of her belongings. Ms Zhou arrived at the offender's unit in Zetland at approximately 7.22pm.
2. According to the agreed facts, neighbours reported hearing sounds consistent with a fight, including shouting in a foreign language, an item being smashed, dragging noises and the sound of someone crying. Ms Zhou and the offender had a physical fight in the apartment resulting in Ms Zhou's blood being deposited on items in the lounge room, kitchen, the kitchen floor and on the frame of the sliding door to the balcony. Ms Zhou's right shoe was found by police in the lounge room with her blood on the lace. During this fight, the offender sustained injuries consistent with having being bitten on the right cheek by Ms Zhou and scratches and bruising in the area of her neck. Consistent with this, photographs of the offender after her arrest that were tendered at the sentence hearing show a bite mark on the upper part of her right cheek. The agreed facts state that the "offender did not wish to let [Ms Zhou] leave the unit".
3. According to the agreed facts, "[Ms Zhou] went onto the balcony and climbed over the railing, then fell, landing face down onto a colour bond fence". The time of that impact was almost 8.39pm, being 1 hour and 14 minutes after she exited the lift on the fifth level where the offender's apartment was located. This aspect of the agreed facts is curiously worded. It is inconsistent with any suggestion that the offender threw Ms Zhou over the balcony and does not suggest that she pushed Ms Zhou from the railing. Accordingly, the offender is not to be sentenced on that basis. The reference to her climbing "over the railing" appears to suggest that Ms Zhou jumped from the balcony, although the reference to the fact that she "fell" suggests that accident may have played some role in her fall. I will proceed on the basis that by climbing on the railing Ms Zhou was certainly trying to escape the offender's apartment. I infer that she was in significant fear given the apartment was on the fifth floor.
4. The CCTV footage commences by showing Ms Zhou falling from the balcony, landing face down onto a metal fence, flipping vertically through the force of the fall and falling back onto the paved path.
5. The CCTV footage captures Ms Zhou, lying on the ground, struggling with her clothing which had pulled up over her face due to the fall. Ms Zhou was able to move her arms and legs, but was unable to get up, and eventually lay on her back and then her side. To my observation, Ms Zhou was writhing in agony on the path after the fall.
6. A few minutes later, the offender approached Ms Zhou lying on the path. The CCTV footage shows that the offender adjusted Ms Zhou's clothing. The agreed facts record that Ms Zhou attempted to move away from the offender and also push her away with her right hand. The offender stood looking at Ms Zhou and then turned leaving Ms Zhou on the path and returning to her apartment. The agreed facts record that the offender did not call an ambulance, nor render any assistance to Ms Zhou.
7. A number of residents reported hearing a loud bang and then someone crying. A resident of the building next door went onto his balcony in response to hearing a bang and then a woman crying. He saw the offender walk from the path around the corner of the building and inside the front entrance. As he could still hear a woman crying, he went onto the path to investigate and found Ms Zhou lying on the pathway. The resident called triple-0 and reported what he had found. The sound from his triple-0 call was played along with the CCTV footage during the sentence hearing.
8. While he was on the telephone call, the offender returned and walked passed him to where Ms Zhou was lying. The CCTV footage shows that the offender had changed into black pants but was wearing the same jumper and shoes as previously. On seeing the offender, the resident retreated back into his apartment building. During the call, the resident expresses shock as well as fear for his own safety.
9. The offender then pulled a knife from her right pocket with her right hand. The offender stood over Ms Zhou while she remained substantially immobilised from the injuries sustained from the impact with the fence and ground. The offender then inflicted approximately 40 stab wounds, and approximately 18 incised and puncture wounds, to Ms Zhou. These wounds were administered in just under two minutes. Most of the stab wounds were to the neck, upper trunk and upper arms. There was a concentration of 18 stab wounds to the neck totally transecting the jugular vein and partially (50%) transecting the carotid artery. On a number of occasions, Ms Zhou waved her hands and arms towards the offender, trying to stop her. According to the agreed facts, Ms Zhou's screams could be heard in the background of the resident's triple‑0 call.
10. The offender struck the last blow to Ms Zhou at 20:49:06. She then placed the knife in her pocket, turned and quickly jogged along the rear of the apartment building. The offender turned right at the corner and came to an area with a series of raised garden beds, where she drove the knife into one of the beds. The CCTV footage shows the offender entering the driveway into the underground carpark, proceeding to the lift and then into her apartment. In the meantime Ms Zhou lay on the footpath. She moved her arms and rolled onto her back. Her last movement took place at 20:53.
11. The CCTV footage shows the offender reappearing from her apartment less than one minute after exiting the lift. The offender took the lift to the carpark and ran to Ms Zhou's vehicle. She drove out of Sydney towards the Illawarra region.

Police Arrival and Arrest

1. Police arrived at the apartment building and located Ms Zhou on the pathway. Ms Zhou was unresponsive and could not be resuscitated. They conducted a search of the offender's apartment and located Ms Zhou's blood at various locations, as well as the offender's clothes with blood stains.
2. On the afternoon of 18 June 2019, police located the knife in the garden bed. Forensic testing confirmed it was the knife used by the offender.
3. Around that time, the offender was seen to climb onto the bottom rail of a fence at the Sea Cliff Bridge at Coalcliff. Police were called and she was arrested. At the police station she told a paramedic that she had wanted to "jump off the bridge and end my life". After a mental health assessment she was cautioned but declined to be interviewed She was charged on 18 June 2019.

Ms Zhou's Injuries

1. The agreed facts record that, as a result of the fall, Ms Zhou sustained a head injury including subarachnoid haemorrhage, dislocated left hip, a fractured right ninth rib, fractured lumbosacral (lower spine) with multiple facet fractures, lacerated right kidney and liver, haematoma of the right back of the trunk, with bruises and abrasions over the overlying skin, bruised arms and legs. The pathologist later concluded "these injuries would not have been immediately fatal and there was no significant haemorrhage associated with the lacerated liver and kidney".
2. The direct cause of death was stab wounds to the neck. The pathologist's conclusion was: "The group of wounds designated injury 7 and comprising eighteen stab and incised wounds whose path coalesced in the neck, showed internal damage to the right common carotid artery and jugular vein, two of the major blood vessels in the neck. Damage to such vessels causes significant haemorrhage and, in my opinion, this neck injury was the direct cause of her death."

Additional Observations

1. In light of the issues that arose in the sentence proceedings it is appropriate to note the following based on my observations of the CCTV footage and the agreed facts.
2. First, to my observation throughout the period that she left her apartment, viewed Ms Zhou writhing in agony, returned to her apartment, apparently changed her pants and then returned again to stab Ms Zhou to death, the offender appeared composed and deliberate. She walked quickly but did not run or stagger. At one point, while in the lift returning to her apartment, she checked the appearance of her hair in her reflection. When it came time to stab Ms Zhou the offender did not hesitate.
3. Second, as noted, the agreed facts record that after the first occasion that she saw Ms Zhou writhing in agony on the path the offender did not call an ambulance or seek other assistance. The CCTV footage shows the offender rolling Ms Zhou onto her back and attempting to adjust Ms Zhou's clothing. She appears to be speaking to Ms Zhou. There is nothing in the footage to indicate the offender cared one iota about Ms Zhou at this time. It was a pitiless inspection.
4. Third, it appears the first stabbing of Ms Zhou involved a slashing or cutting of her throat. Thereafter, there was a combination of slash wounds and stabs. Even though they were only administered in just under two minutes, they were not all delivered in a frenzy. Instead, the offender appeared to briefly assess the impact of each wound or group of wounds before continuing. After each attack Ms Zhou attempted to get up but was unable to do so.
5. Fourth, from the CCTV footage it appears that the time between Ms Zhou landing on the footpath and her final movement was around 14 minutes. As noted, in the period prior to her fall she must have experienced significant fear. However, the final 14 minutes of her life were horrific. She lay broken and in agony on the path only to have her former partner inspect her, leave to obtain a weapon, and then return to slash her throat and inflict multiple knife wounds upon her. The final minutes of Ms Zhou's far too brief life were lived in excruciating pain, fear and terror all of which the offender is responsible for.

The Offender's Letter to the Court

1. At the sentencing hearing there was tendered a lengthy letter from the offender titled "Letter of Apology". Although the offender did not give evidence, I allowed its tender. I indicated that the failure of the offender to give evidence on oath may affect the weight I attach to its contents, especially so much of it as concerns the circumstances in which Ms Zhou was killed.
2. The letter commences with the offender expressing her "guilt, shame, disgust and remorse" for her offence. She states that she never stops thinking of Ms Zhou, her family and "all the people who have suffered and are still suffering from my crime". The letter then sets out a lengthy description of the offender's upbringing in China until she migrated to Australia in 2014 aged 24. The offender describes the difficulties she experienced in China and Australia in obtaining acceptance and understanding of her sexuality, matters I accept. She said she met Ms Zhou in 2017 and that they "fell in love at first sight". She describes their relationship from then until 2019, including an assertion that Ms Zhou's family did not accept that their daughter was in a same sex relationship (a matter they deny and which is not necessary to resolve). The offender then described her extreme anguish at her break up with Ms Zhou, a matter that I also accept and which is consistent with the agreed facts.
3. In her letter, the offender states that on 16 June 2019 Ms Zhou said she was coming to the offender's apartment. The offender said she wanted to cook for Ms Zhou one last time. The offender says she became upset when Ms Zhou said she was too tired to come over. The offender said she began drinking. The offender said that Ms Zhou agreed to visit at 6.00pm to 7.00pm the following day, that is 17 June 2019. The offender recounts how she prepared fruit for Ms Zhou and continued drinking. The offender states that when she arrived Ms Zhou requested a cigarette and they discussed some money that Ms Zhou allegedly owed her.
4. The next part of the letter states: "She said she didn't want to stay any longer with me because she didn't see any point in talking to me. She walked to the hallway. I followed her and held her hand, begging her, 'Just one hour, please. You've suffered from depression, you must know how it feels? I just want someone to talk to'. She insisted on going but I kept begging her. Then she got irritated. She pushed me away and started yelling at me. I stood in front of the door. She took out the phone and wanted to call or message Yu. I tried to stop her by grabbing her phone. We kept pushing and pulling. We then had a physical fight. There [was] a lot of screaming and shouting by her and I could not remember much what happen[ed] next. I then saw her at the balcony trying to jump onto the balcony below. I then cannot remember anything else. The next thing I remember was seeing the knife in my hand and pulling the knife out of her. I was … shocked. I took a step back and ran away. I was extremely scared. I went back to my apartment and quickly grabbed a car key and drove away."
5. I note three matters about this passage and that which precedes it in the offender's letter of apology. First, the description of the events leading up to the meeting, and what occurred when Ms Zhou tried to leave, are consistent with the offender refusing to accept that their relationship was over. That is very common with extreme forms of domestic violence, such as this case. However, what is notable is that even now there appears to be a lack of insight on the part of the offender that Ms Zhou was doing no more and no less than exercising her right to choose with whom she wanted to have a relationship and when.
6. Second, this extract appears to give an impression of a mutual confrontation in the apartment before Ms Zhou climbed on the railing. The bite mark on the offender's face supports a contention that Ms Zhou at least tried to fight back. However, I am satisfied beyond reasonable doubt that the offender was the aggressor in that confrontation. The agreed facts record that Ms Zhou wanted to leave and the offender would not let her go. The offender's letter confirms this. It was Ms Zhou's blood that was found throughout the apartment and it was Ms Zhou who was in such fear that she climbed up on the railing of the balcony.
7. Third, to the extent that the letter asserts a lack of recollection on the part of the offender surrounding her killing of Ms Zhou, then I do not accept it. As noted, the letter was not testified to on oath. None of the psychiatric material to which I will refer supports a conclusion that she would have no recollection of those events.
8. The balance of the letter of apology deals with the offender's experience in custody. She describes being the subject of racist and homophobic abuse but finding solace in religion and work. She describes the difficulties faced by prisoners during the COVID-19 pandemic in that she has had no visitors in 16 months, especially as her family is currently unable to travel to Australia. I accept those matters.

Intention to Kill

1. By her plea, the offender is taken to have admitted that, when she murdered Ms Zhou, she was intending to kill Ms Zhou or inflict grievous bodily harm upon her. Based on the agreed facts and the CCTV footage I am satisfied beyond reasonable doubt that she stabbed Ms Zhou with an intent to kill.
2. When was that intention formed? In its submissions the Crown contended that the offence was aggravated as it involved some "level of planning", although it was "confined to the time between 20:42:36 and 20:47:18". [1] The time "20:42:36" coincides with when the offender moved Ms Zhou onto her back when she first inspected her after the fall. As I understand this submission, it effectively contends that the offender decided to kill Ms Zhou at that point. It does seem likely that the purpose of this appalling inspection by the offender was to ascertain whether Ms Zhou was already dead and, if not, kill her. However, I am not satisfied beyond reasonable doubt that she thought that at exactly that point although I am satisfied that by 20:43:44, when she started her return walk to her apartment, the offender had decided to obtain a knife to eliminate any chance Ms Zhou had of surviving the fall.

The Offender's Mental State

1. The above material raises an obvious question as to whether the offender was affected by a mental illness at the time she killed Ms Zhou. The parties debated whether there was any "loss of control" on the part of the offender. The reference to "loss of control" in this context appears to be derived from the reference to a person's impaired ability to "control himself or herself", which is an aspect of the partial defence provided for in s 23A(1)(a) of the Crimes Act. As I understand it, accepting the partial defence is not established in this case, the issue is nevertheless whether there was some degree of loss of the offender's ability to control herself so as to mitigate either the objective seriousness of her crime or her moral culpability for it.
2. Tendered on behalf of the offender were two comprehensive reports of a psychiatrist, Dr Richard Furst. In his first report dated 23 July 2019, Dr Furst diagnosed the offender as having a major depressive disorder. He opined that she "manifests features of a relatively severe episode of depression that developed in the weeks after she and [Ms Zhou] broke up and continued after the following months, up to and including the time" she killed her. [2] He described a major depressive disorder as a "disabling condition that has an adverse impact on a person's ability to work or study, their family life, sleeping and eating habits and general health". [3] In his second report dated 28 August 2020, Dr Furst slightly revised this diagnosis as a major depressive disorder with melancholic features and added that there was present "possible psychotic symptoms". [4]
3. In his second report, Dr Furst stated the following concerning the possible operative effect of this condition upon the offender's actions: [5] "Therefore, I am of the opinion that Ms Wang was severely depressed on the night of the offence in question before the court and that her symptoms of depression had progressively increased over the preceding 4-5 months. Her depressive condition was severe and, therefore, likely affected her thinking, cognitive function and her behaviour on the evening in question, including increased irritability, negative and possibly nihilistic thinking, and a lack of care about the consequences of her actions, including as she intended to kill herself in any case. Although Ms Wang was aware of her actions when killing the deceased, Shuyu Zhou, and was also aware her actions were wrong according to the standards of ordinary people, she was in a disordered state of mind by virtue of her severe depression and associated thought processes, which contributed to her poor decision-making and extreme actions when killing Ms Zhou. Her capacity for self-control was probably also impaired by her severe depression on the evening in question." (emphasis added)
4. The Crown Prosecutor contended that a review of the CCTV footage is completely inconsistent with any suggestion that the offender experienced a loss of control at or around the time she killed Ms Zhou. As I have stated, in that footage the offender was composed and deliberate in her actions. Mr Bellanto QC submitted that this was not determinative. He pointed out that Dr Furst reviewed the CCTV footage before preparing his reports.
5. I accept Dr Furst's conclusion that throughout the months preceding the killing of Ms Zhou the offender was suffering from a major depressive disorder (with melancholic features). The diagnosis is strongly supported by the objective evidence of her conduct during that period. However, Dr Furst's opinion concerning her capacity for self‑control needs to be considered carefully. Part of his opinion was fairly equivocal ("probably also impaired"). Moreover, the form of loss of control he describes is one that flows from "increased irritability, negative and possibly nihilistic thinking, and a lack of care about the consequences of her actions". As I understand, Dr Furst is not suggesting that her mental condition was the genesis of her deliberate decision to brutally kill Ms Zhou (but if that is what he contended then I would reject it). Instead, the effect of his opinion appears to be that, having formed the intention to do so, the offender was less able to prevent herself from carrying out that intention because of any concern about the longer-term consequences for herself from doing so. In that sense her thinking was "nihilistic". In this, albeit very limited, sense I am prepared to accept that the offender's ability to control herself was impaired.

Intoxication

1. Another issue debated between the parties concerned whether the offender was relevantly intoxicated during the period she killed Ms Zhou. In his second report, Dr Furst reported the offender telling him that she had consumed two bottles of wine on 17 June 2019. [6] He also reported her stating, "I totally lost control. Totally not myself. I was drunk". [7] As noted in her letter of apology to the Court, the offender referred to consuming alcohol on the day of the offence and the preceding day.
2. Mr Bellanto QC's written submissions accepted that, while self‑induced intoxication at the time of the commission of the offence is not a mitigating factor, it can explain the circumstances of the offending (citing R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [273]; "Henry"). It was submitted that the offender's intoxication on 17 June 2019 "sheds light on the impulsivity of her actions, her state of mind and her capacity to exercise judgment during the incident". [8]
3. I am not satisfied that the offender was intoxicated at or around the time of the offending. The only material supporting that contention is her own hearsay statements to which I attribute little weight. Of most significance is the offender's composure as shown in the CCTV footage. I was able to observe her movements, deportment and, to an extent, facial expressions while she was in the lift of the apartment building. None of those observations supports the contention that she was intoxicated. Otherwise, I reject the contention that there was any "impulsivity" on the part of the offender when she killed Ms Zhou. Based on the findings I have made, the killing of Ms Zhou was not an impulsive act.

Significance of Findings Concerning Depression

1. In Director of Public Prosecutions (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194 at [177] ("De La Rosa"), McClellan CJ at CL summarised the effect of the authorities concerning the relevance of an offender's mental illness, intellectual handicap or other mental problems to the sentencing process. Five relevant principles should be noted.
2. First, if a person's mental health contributes to the commission of the offence in a material way, then the offender's moral culpability for the offence may be reduced, as may the need to denounce the crime (citing Henry at [254] and other cases). The offender sought to rely on this principle. [9]
3. Second, it may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed (citing R v Engert (1995) 84 A Crim R 67 at 71 and other cases). The offender also sought to rely on this principle (citing Muldrock at [53]). [10]
4. Third, the presence of a mental illness or intellectual handicap may mean that a custodial sentence weighs more heavily on the person (citing R v Tsiarias [1996] 1 VR 398 at 400 and other cases).
5. Fourth, the presence of a mental illness or intellectual impairment may reduce or eliminate the significance of specific deterrence (citing R v Israil [2002] NSWCCA 255 at [25] and other cases; "Israil").
6. Fifth and conversely, it may be that because of a person's mental illness, they present more of a danger to the community warranting increased weight being attached to considerations of specific deterrence and thus an increased sentence (citing Israil at [24] and other cases).
7. Of some relevance to this case is that in De La Rosa McClellan CJ at CL confirmed that these principles extend to an offender with "a mental disorder of modest severity" which need not amount to a "serious psychiatric illness" (De La Rosa at [178]). However, it is important to recognise that all of these principles were expressed in permissive terms ("may"), ie, none of the consequences automatically follow from the presence of a mental disorder. Amongst other matters, the nature of the disorder and its relevance to the offence and the offender must be considered.
8. In relation to the first and second principles that were stated in De La Rosa, I have already accepted that, in a very limited sense, the offender's mental health contributed to the commission of the offence in a material way. However, I do not accept that it has any material effect on her moral culpability. At all times she was completely cognisant of the nature and quality of her acts, the appalling suffering she was inflicting on Ms Zhou and the consequences for Ms Zhou's family that would follow. It can be accepted that someone can be guilty of murder but not be fully cognisant of some or all of those matters due to mental illness or an intellectual impairment. However, that is very different to someone being fully cognisant of those matters but not being able to restrain themself from committing murder because their capacity to consider the long term consequences of doing so is impaired because of depression. Otherwise, I do not consider that there is any justification for ameliorating considerations of general deterrence, given that the offending involves extreme domestic violence (R v Villaluna [2017] NSWSC 1390 at [85]; "Villaluna").
9. As for the third principle, I will address the particular difficulties faced by the offender in custody shortly. Her major depression is an aspect of that. That said, understandably, it is very common for offenders facing long prison terms to be depressed (Villaluna at [65]). As for the fourth and fifth principles, I do not consider that either more or less emphasis on specific deterrence is warranted on account of the offender's depression. On any view, she faces a long custodial sentence and her circumstances will be very different at the stage of life when she is released.

The Offender's Subjective Circumstances, Remorse and Prospects of Rehabilitation

1. I have already referred to the offender's letter of apology. As noted, it includes a lengthy description of her upbringing in China before her migration to Australia. This topic is also addressed in Dr Furst's report. Based on that material, supplemented by other statements tendered on her behalf, I am satisfied as follows.
2. The offender was born in Gansu province. Her parents separated when the offender was around three years old. The offender states that her father was violent towards her mother, but told Dr Furst that she did not witness this prior to their separation. For a time, the offender was raised by her mother but she attended a long‑stay childcare facility that was apparently strict and administered physical punishment. From when she was around aged four she was raised by her maternal grandparents, although it appears to have been a stern and austere home. She describes a lonely childhood with few friends at school. When she was five or six years of age, she witnessed her father attempt to force his way into her grandparents' home by producing a knife. She remained with her grandparents until she was eleven and then resumed living with her mother, who had remarried. She had a reasonable relationship with her stepfather.
3. The offender performed well in school. She obtained a Bachelor's degree in political science and law when she was aged 22. She ran her own business for two years prior to coming to Australia to undertake a Masters Degree in Accounting and Marketing in Adelaide. She moved to Sydney in 2016. Dr Furst noted that the offender did not appear to experience any behavioural or other difficulties throughout her education.
4. I have already accepted the offender's description of the difficulties she experienced in China and Australia in obtaining acceptance and understanding of her sexuality. Dr Furst describes her reporting "three or four relationships with other women in China" between her mid-teens and when she was 24 and that there was no indication of domestic violence in those relationships. To that end, a former partner of the offender with whom she had a relationship while she studied in Adelaide, told the Court of their "peaceful break up" when the offender moved to Sydney and how out of character her actions in this case were. [11]
5. A number of other statements were tendered on behalf of the offender. Ms Shupang Liang, a friend from when she lived in China, said she was shocked by the crime the offender had committed because she knew her to be a "caring person". [12] The offender met Ms Hailun Li while they were both undertaking an interpreting course in 2016. They become close friends. Ms Li provided a statement in which she also expresses her shock at hearing of the offender's arrest. She visited the offender in gaol and recounts the offender being remorseful. [13] Similarly, another friend, Ms Xuenan Pei, describes how upset and depressed she observed the offender to be in the months prior to the killing and how, to her observation, the offender "really blames herself and is remorseful". [14]
6. A statement from the offender's mother was tendered. She lives in Beijing. She recounts the offender's childhood history in a manner consistent with that stated by Dr Furst. [15] She expresses her shock and distress about learning of her daughter's actions. As parents often do, she states she feels guilty that some part of the offender's upbringing may have somehow contributed to the commission of the offence. The offender's elder sister, Ms Yuwei Zhang, also provided a statement. For a period, she lived in Adelaide at the same time as her sister. She is now in Beijing and, like her mother, could not attend court due to the COVID-19 pandemic. Ms Zhang said that, after her sister was arrested, she travelled to Australia to visit her in custody. She described her sister as "full of confusion and fear", but also as having "regrets". [16]
7. A statement was tendered from the Chaplain at Silverwater Womens Correctional Centre, Ms Margaret Wiseman. [17] She saw the offender regularly over a period of months in 2019 before the offender was transferred elsewhere. She describes the offender as distressed and perplexed when she first entered the gaol but says she settled over time. Ms Wiseman says the offender began to participate in prison fellowship. Ms Wiseman states that she is aware that the offender has "remorse for events that happened in the past". Another statement tendered was from the Chaplain at Mary Wade Correctional Centre, Ms Robyn Lee, which is to similar effect, although it does not address the topic of remorse. [18]

Mitigating Factors

1. Seven potential matters of mitigation are raised by the material tendered on behalf of the offender.
2. First, Mr Bellanto QC submitted that the offender was a person of (prior) good character and she did not have any record of previous convictions (Sentencing Act, ss 21A(3)(f) and (e)). Given the evidence tendered during the sentencing proceedings, including material suggesting she had no antecedents, I accept both matters.
3. Second, Mr Bellanto QC submitted that the offender was remorseful, specifically that she has "provided evidence that … she has accepted responsibility for … her actions" and "has acknowledged any injury, loss or damage caused by … her actions" (Sentencing Act, s 21A(3)(i)). The evidence of remorse is the offender's letter of apology, some of the statements noted above and, to an extent, various case notes from the prison system that refer to her being in a distressed state in the period after she was arrested.
4. I have already described the effect of the letter of apology and the caution I adopt in giving it weight. The letter includes a number of expressions of regret for killing Ms Zhou and the terrible impact on her family as a result. The letter is also awash with melancholy and self-pity, although that is consistent with Dr Furst's diagnosis of her mental condition. The statements of Ms Li and Ms Pei are to similar effect. In the end result, I am prepared to accept that the offender is remorseful for the killing of Ms Zhou and the resultant impact it has had on Ms Zhou's family, although I am not satisfied that she has fully come to terms with her own actions and their consequences.
5. Third, Mr Bellanto QC submitted that the Court should find that the offender was "unlikely to reoffend" and had "good prospects of rehabilitation, whether by reason of the offender's age or otherwise" (Sentencing Act, ss 21A(3)(g) and (h)).
6. In support of this contention, Mr Bellanto QC pointed to her prior good character and her early plea. He also relied on Dr Furst's reports. In his second report, Dr Furst noted that the offender would be deported to China after she served her sentence and thus assumed community support would be provided in that country. He considered it likely that she would recover from her depression over time. He addressed her prospect of reoffending, including by reference to static and dynamic risk factors. He concluded that she "presents with a relatively low loading of historical and dynamic risk factors compared to the average offender". However, he also expressed a concern about her suicide risk. [19]
7. An assessment of the offender's prospects of reoffending on her release is difficult when, on any view, she will not be released for many years and when she is at a very different stage of her life. To the extent that I have any concerns over reoffending it would be how the offender would respond to rejection following the break up of another relationship. Given that she previously endured such a break up, and Dr Furst's opinion that she will recover from her depression, I would assess the risk of serious reoffending in that circumstance as low but not negligible. I would assess the risk of reoffending in other circumstances as very low. That said, I do not consider that a finding of special circumstances based on this factor, or any other matter save for rounding, is warranted. If I ignore the possibility that she will be deported on the expiry of her non‑parole period, which I am bound to do, then the period of time she will be subject to supervision on parole will be more than sufficient. However, even if I was to consider the likelihood or even inevitability of her deportation upon the expiry of her non‑parole period, then the same result would follow as she would not be supervised under parole in New South Wales and there is no evidence as to what might occur in China.
8. Fourth, Mr Bellanto QC submitted that the offender's experiences as a child in China are relevant to sentence. He submitted that the offender "grew up in an environment where she was exposed to violence by her biological father, corporal punishment at school, neglect and isolation arising from abandonment by her parents". He referred to an opinion of Dr Furst that the offender had "developed [an] insecure pattern of attachment, a psychological/developmental construct that relates to the security of childhood and adult relationships, typically manifesting in a fear of abandonment, clingy and/or insecure relationships, dependence on others and/or co‑dependent relationships".
9. In describing the effect of a deprived background on the sentencing exercise, the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44] ("Bugmy") observed that "an offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced", but also noted that "an inability to control the violent response to frustration may increase the importance of protecting the community from the offender".
10. In the offender's case, Dr Furst's opinion may provide an explanation for how the offender's break up with Ms Zhou affected her so profoundly. However, an explanation is one matter, a mitigating feature is another. The offender had previous break ups that did not result in violence. In any event, she did not just respond to a break up with violence, she engaged in a form of premeditated murder. The offender's background was hard but she did not "grow up in an environment surrounded by alcohol abuse and violence" of the kind contemplated in Bugmy (at [43]). Her home environment throughout her teenage years was relatively calm and she performed well at school, although she and her family had to come to terms with her sexuality. By her early 20s she was in stable relationships, had solid friendships and was tertiary educated.
11. I do not accept that the offender's moral culpability is reduced on account of her background or that it warrants extra consideration being given to specific deterrence.
12. Fifth, Mr Bellanto QC submitted that the offender's sense of shame and guilt as well as the suggestion that, in the immediate aftermath of the killing, she contemplated and in some respects inflicted self harm was a form of "extra-curial punishment" that warranted some mitigation of her sentence. I have made findings about her remorse and mental state. Given the offender's "gross moral culpability" I do not consider that any further allowance is warranted on account of those matters (see R v Koosmen [2004] NSWCCA 359 at [32]).
13. The sixth and seventh matters relied on concern the circumstances of her time in custody and the isolation she will experience from her family. They can be dealt with together. The offender has been in custody since June 2019 and her work performance is reported as exemplary. For much of this year prisoners have been affected by restrictions on personal visits due to the COVID-19 pandemic, although they can occur by audio visual means. It is obviously difficult to estimate when the various restrictions imposed by the pandemic will lift and it cannot be said that they will not be reimposed. However, for the offender her position is made worse by the fact that all her family is overseas. It cannot be assumed that international travel restrictions will be lifted at the same time as other pandemic related restrictions. Even when they are, travel to Australia can be expected to impose a significant burden on them. The end result is that the offender faces an uncertain and reasonably lengthy period of complete personal isolation in custody in Australia and can only expect spasmodic visits from her family thereafter. I accept that these more onerous conditions of incarceration should be taken into account in sentencing (see McKinnon v R [2020] NSWCCA 106 at [32]).

Aggravating and Mitigating Features of the Offence and Objective Seriousness

1. In his submissions the Crown Prosecutor identified two aggravating features of the offending for the purposes of s 21A of the Sentencing Act. The first has been addressed, namely, the level of planning (s 21A(2)(n)). The other, is that it involved the use of a weapon (s 21A(2)(c)), although the fact that the offence is murder means that the use of a weapon does not add much to an assessment of objective seriousness (Milat v R; Klein v R [2014] NSWCCA 29 at [95]). The use of a knife by the offender in this case has not made any material contribution to my assessment of the objective seriousness of the offence.
2. Conversely to the Crown Prosecutor, Mr Bellanto QC submitted that the offence was "not part of a planned … activity" (s 2A(3)(b)). I have already found to the contrary so far as the period from 20:43:44 on 17 June 2019 is concerned. Bearing in mind Olbrich, I am left unsatisfied either way for the period prior to 20:43:44 on 17 June 2019. This mitigating factor is not established.
3. The written submissions referred to the possibility that the aggravating factor referred to in s 21A(2)(l), namely that the victim was vulnerable, was satisfied in this case. [20] However, I am bound by a construction of s 21A(2)(l) that confines the concept of vulnerability to something arising from "characteristics of any group of which [the victim] was a member" and not "because of the particular events of the day" of the offence (Betts v R [2015] NSWCCA 39 at [30]). Nevertheless, the stabbing of an injured woman lying helpless on the ground is obviously an aspect of an assessment of the objective gravity of the offence (R v Williams [2005] NSWCCA 99 at [40]).
4. The parties debated the objective seriousness of the offender's crime and proffered various classifications by reference to the middle of the range of objective seriousness of the offender of murder. Such an assessment is to be undertaken "without reference to matters personal to a particular offender or class of offenders …[and]… it is to be determined wholly by reference to the nature of the offending" (Muldrock at [27]).
5. This Court sees the full range of circumstances in which one person intentionally takes the life of another. All murders shock the community and all too often they arise out of a breakdown in a personal relationship. However, this was a particularly heinous crime. How could the feelings of anger, bitterness and rejection that welled up in the offender from the breakdown of her relationship with Ms Zhou not dissipate to at least let her have some modicum of sympathy as she saw Ms Zhou helpless and writhing in agony after that fall onto the sidewalk? Even then, the offender did not call for help or offer any assistance. Instead, the offender calmly returned to her apartment, changed her pants and returned to slash Ms Zhou's throat and stab her to make sure she was dead. This murder displayed a pathological callousness for the suffering of someone she used to love. Even allowing for the range of criminality that this Court sees with the crime of murder, the objective seriousness of this murder was above the middle of the range of objective seriousness for that offence.
6. A different but related concept to objective seriousness is moral culpability (see Muldrock at [54]). This takes into account matters personal to an offender including their mental health (see McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing), a matter I have already addressed. Even allowing for that, I consider that the offender's moral culpability for this offence was high.

The Offender's Plea of Guilty

1. Section 21A(3)(k) of the Sentencing Act provides that the entry of a plea of guilty is a mitigating factor. The offender entered a plea of guilty in the Local Court on 30 April 2020. It was accepted by both parties that, as a consequence, the effect of s 25D(2)(a) of the Sentencing Act is to afford her a reduction of 25% in any sentence that would otherwise be imposed.
2. In this case, the application of this discount is subject to s 25F(2) which enables the Court, on its own motion or on the application of the prosecution, to determine not to apply the sentencing discount "because the level of culpability in the commission of the offence is so extreme" that the various sentencing objectives can be met only by the imposition of a penalty with no allowance for, or a reduction of, that discount.
3. As will become clear, the application of the mandated 25% discount effects a very significant reduction in the offender's sentence. Nevertheless, no application was made by the Crown Prosecutor under s 25F(2) and I am not satisfied that its provisions are applicable.

Victim Impact

1. A victim impact statement was read to the Court by Ms Zhou's mother, Ms Li Wang (Sentencing Act, ss 30B(4) and s 30B(2)).
2. Li Wang told the Court that she and her husband were married in July 1991 in Nanjing in China. Their daughter, Ms Zhou, was born in 1996 and the family migrated to Australia in 2009. At that time Ms Zhou was thirteen years old. Her younger brother was born in July 2011. Despite the challenges faced by migrating to a new country, Ms Zhou successfully completed year 12 in 2015, then enrolled in University and obtained a part‑time job. Li Wang described with pride the growing independence of her daughter as she grew older. Li Wang described her daughter as "kind, healthy, beautiful, intelligent, capable and happy to help people". Her daughter played the piano and loved singing, golf, running and travel.
3. Li Wang described how in the 400 days since her daughter's death her life has become one of continuous "pain and misery". She describes life as having "lost its colour" with only "bitter suffering" left. She said the murder of her daughter was a "deadly blow" to her husband. It is clear from Li Wang's statement that the circumstances of Ms Zhou's death are destroying her family almost as much as the fact that she is gone. Li Wang described the "unbearable pain" she feels as something she "would succumb to … in no time". She describes her life "as good as dead".
4. I am unable to describe the pain evoked by Li Wang as she delivered this statement in Court. I can only state that I find it difficult to envisage any circumstances in which either her or her husband will ever resume anything approaching normality in their life given their knowledge of the facts and circumstances surrounding their daughter's death. The Court extends its deepest sympathies to Li Wang and her family.
5. The Court is obliged to consider Li Wang's statement (s 30E(1)(a)). The Court may consider the statement "in connection with the determination of the punishment for the offence on the basis that the harmful impact of [Ms Zhou's death] on [her family] is an aspect of harm done to the community", but only if so submitted by the Crown Prosecutor and if the Court considers it appropriate (s 30E(3)). This submission was made by the Crown Prosecutor and I am satisfied that it is appropriate.
6. It is not the function of this Court to attempt to impose a punishment on the offender that is somehow comparable to the continuing pain endured by Ms Zhou's family. Li Wang's statement confirms that would be a futile exercise. Instead, the Court's role is to seek to impose a just punishment according to law. Li Wang's statement confirms the severe harm done to the community by the offender's crime; its effect will continue for a long time to come.

Comparable Cases

1. While acknowledging the limitations on using sentences imposed in other murder cases (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]; "Hili"), the parties referred to various sentences that had been imposed in arguably similar circumstances.
2. In their comprehensive submissions, counsel for the offender referred to various judgments of this Court that sentenced offenders for murders that arose out of a breakdown in a personal relationship. I have considered those decisions. However, I note that most of them involved a spontaneous, albeit very violent, act and did not display the level of deliberateness shown by this offender (see for example R v Serutawake [2014] NSWSC 1762; R v Hejabian [2016] NSWSC 1692; R v Cadman [2019] NSWSC 634; R v Greentree [2019] NSWSC 1642).
3. The Crown Prosecutor referred to my decision in Villaluna. In Villaluna, I sentenced the offender to a term of imprisonment of 34 years with a non‑parole period of 24 years for the stabbing murder of a man who had met the offender's former partner for their first dinner date. The offender also stabbed his ex‑partner at the same time but he did not kill her. The total sentence for both offences was 40 years imprisonment with a non‑parole period of 30 years. I did not accept that the killing was spontaneous but instead found that the offender was "putting into effect something he had already determined to do for some time, namely kill any man that he thought was showing a romantic interest in his ex-partner" (at [46]). I characterised the murder offence in Villaluna as "well above the middle of the range of objective seriousness" (at [49]). The offender was afforded a discount of 15% on account of his plea such that prior to the discount the full term of his sentence for murder was 40 years imprisonment. There are some similarities between this case and Villaluna. Both cases involved a brutal stabbing in a public space and extreme callousness on the part of the offenders. However, in Villaluna I was satisfied that the intention to kill had been prevalent for some time. Although this case is a very serious example of murder, it is not as serious as Villaluna.
4. In his written submissions, the Crown Prosecutor noted two cases that I referred to in Villaluna, namely, R v Cullen [2015] NSWSC 768 ("Cullen") and R v Mulvihill [2014] NSWSC 443 ("Mulvihill"). In Cullen, the offender was sentenced after a trial to imprisonment for 30 years and 6 months with a non‑parole period of 22 years and 6 months. He had stabbed his wife and himself after their marriage broke up. He had assaulted her earlier that day, forced her into the boot of his car and then stabbed her to death that afternoon in what the sentencing judge described as an attack of "awful brutality" (at [37]). The offender formed the intention to kill no later than when he purchased the knives some hours before he killed her (at [15] to [20]). His Honour found that the offence was above the middle of the range of objective seriousness (at [35]) and that there was no evidence of remorse.
5. In Mulvihill, Fullerton J sentenced the offender to a term of imprisonment of 29 years with a non‑parole period of 22 years following a trial. An appeal against conviction and sentence was dismissed (Mulvihill v R [2016] NSWCCA 259). The offender had an extra‑marital affair with the deceased and stabbed her after she ended their relationship. He displayed obsessive behaviour towards her and eventually confronted her at her home. She died of stab wounds and suffered blunt force injuries. The sentencing judge found that the offender had gained entry to her home but not with an intention to kill her, only an intention to harm or threaten her. He then formed an intention to kill as events unfolded (at [59]).
6. I have found these cases of assistance. The relevant findings that I have made make this case slightly more serious than Mulvihill and comparable to Cullen. However, no two cases are the same and individual sentencing outcomes do not establish binding sentencing principles (Hili at [54]).

Conclusion

1. Shuyu Zhou was an exceptional young woman whose life was ended just as she was about to come into her own. She was brutally stabbed to death by her otherwise calm and collected ex‑partner as she lay writhing in agony on a pavement after a fall from great height. Shuyu Zhou's otherwise happy life was ended in terror, pain and fear. As I have said, this was an especially callous crime. It was also yet another example of extreme domestic violence that, to an extent, can be explained but not mitigated. The offender's personal circumstances including her mental health warrant some leniency but, as I have said, general deterrence, retribution and denunciation are the dominant sentencing criteria in this case.
2. Prior to any discount for the offender's plea of guilty, I consider the appropriate head sentence for the offender is 34 years imprisonment. After allowance for the plea the term of the sentence will be 25 years and 6 months. The non‑parole period will be 19 years imprisonment which is just less than that required by the statutory ratio referred to in s 44(2) of the Sentencing Act. There is a finding of special circumstances but only to make allowance for that rounding.
3. As the offender was taken into custody on 18 June 2019, it follows that her custodial sentence should commence from that date.
4. Zixi Wang, the offence of murder is a "serious violence offence[s]" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006. The Court is obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.
5. Zixi Wang, for the murder of Shuyu Zhou you are convicted. You are sentenced to a term of imprisonment of 25 years and 6 months. Pursuant to ss 44(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 the Court sets a non‑parole period of 19 years commencing on 18 June 2019 and an additional term of 6 years and 6 months commencing on 18 June 2038 and ending on 17 December 2044. You will be first eligible for release on parole on 18 June 2038.

Endnotes

1. Crown subs at [12(b)].
2. Exhibit 1, tab 2, p 5.10.
3. Exhibit 1, tab 2, p 6.4.
4. Exhibit 1, tab 1, p 9.2.
5. Exhibit 1, tab 1, p 10.
6. Exhibit 1, tab 1, p 6.
7. id.
8. Offender's submissions at [37].
9. Offender's submissions at [33].
10. Offender's submissions at [33].
11. Exhibit 1, tab 6.
12. Exhibit 1, tab 5.
13. Exhibit 1, tab 7.
14. Exhibit 1, tab 9.
15. Exhibit 1, tab 8.
16. Exhibit 1, tab 10.
17. Exhibit 1, tab 11.
18. Exhibit 1, tab 13.
19. Exhibit 1, tab 2, p 13.
20. Offender's submissions at [47].

Amendments 01 October 2020 - Coversheet amended to include the name of junior counsel for the offender. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2020